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People v. Jeffrey G.

California Court of Appeals, First District, First Division

July 13, 2017

THE PEOPLE, Plaintiff and Respondent,
JEFFREY G., Defendant and Appellant.

         Trial Court: Napa County No. CR127321 Superior Court Hon. J. Michael Byrne Judge.

          Julia Freis, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Rene A. Chacon and Katie L. Stowe, Deputy Attorneys General, for Plaintiff and Respondent.

          Margulies, J.

         Defendant Jeffrey G. has been confined to a state hospital for over 20 years. In 2015, he petitioned for transfer from the hospital to a conditional release program. At the hearing on his petition, defendant and a psychologist who had examined him testified regarding his likelihood of success in the unstructured environment of the conditional release program. In turn, the prosecution presented the testimony of three expert witnesses to contest his readiness. Under the law applicable at the time of the hearing, an expert witness was permitted to testify with respect to the hearsay evidence on which the expert based his or her opinion, regardless of whether there was competent evidence in the record to support that testimony. On the basis of such testimony, the trial court denied defendant's petition. A short time after the hearing, the Supreme Court issued People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which substantially limited expert testimony with respect to case-specific hearsay evidence. Had the hearing been conducted under Sanchez, it is certain that at least some of the testimony of the prosecution's experts would have been excluded.

         We agree with defendant that we must apply the rule of Sanchez and reverse the trial court's denial of his petition for conditional release. Defendant's testimony and the testimony of his expert provided independent evidence to support some of the otherwise-hearsay testimony by the prosecution's experts, but a significant portion of their testimony was not anticipated by defendant's evidence. In part because the trial court found defendant's petition to present a close case, we conclude it is reasonably probable that the trial court would have granted defendant's petition in the absence of the expert testimony rendered inadmissible by Sanchez.

         I. BACKGROUND

         Defendant was committed to the State Department of State Hospitals (DSH) in 1990, after he was found not guilty by reason of insanity of a violent crime, and he has been confined to a hospital for most of the subsequent time. In May 2016, he agreed to extend his commitment for an additional two years, until June 2018. (Pen. Code, § 1026.5, subd. (b).)

         Notwithstanding his agreement, defendant petitioned to be transferred from a state hospital to a conditional release program. (Pen. Code, § 1026.2, subd. (a).) At a bench trial on his petition, defendant testified and called two other witnesses, a consulting psychologist and a hospital employee who had observed defendant's conduct during his commitment. The prosecution called three witnesses, all psychologists or psychiatrists, two of whom had recent supervisory responsibility over defendant's confinement for periods of six months each.

         Defendant is diagnosed with schizoaffective disorder, bipolar type, and narcissistic personality disorder. His symptoms have included aural and visual illusions and mental delusions. These are controlled by treatment, but they can be triggered by drug or alcohol use or the failure to maintain his medication regimen. Defendant has not suffered psychotic symptoms during his time in his current institution, a period of over 10 years. In testifying, he acknowledged his illness and recognized the necessity of maintaining sobriety and adhering to the medication regimen in order to avoid an onset of symptoms. He committed to continue both if conditionally released.

         There was general agreement at trial that defendant, while in confinement, had complied with his medication regime and was free of psychotic symptoms. His three prior attempts to live outside the hospital under the conditional release program (CONREP), however, had ended in failure.[1] His first attempt, in 1991, lasted only 18 days. The second attempt was more successful, lasting around two years before defendant violated the terms of the program by going absent without leave in 1996. The most recent attempt, in 2005, lasted only 12 days because an apparently ill-advised change in defendant's medication caused him to decompensate.

         A primary focus of the testimony was defendant's relatively recent conduct in the hospital. Within the prior year, defendant had broken hospital rules by selling goods to other patients and having sexual contact with another patient in a public area of the hospital.[2] Within the prior six months, he had a run-in with a staff person at the hospital. When the staff person told defendant to stop watering a plant before he killed it, defendant responded that he would kill the staff person before he killed the plant. There was also inconsistent testimony about defendant's attendance at treatment groups, which is discussed in more detail below.

         Defendant's expert did not believe that these incidents disqualified him from conditional release. As the expert pointed out, the primary threat to defendant's mental health was substance abuse, which led to reduced medication compliance and a reappearance of his symptoms. Although drugs and alcohol were illicitly available in the hospital, the expert noted, defendant had avoided the temptation to use them for the duration of his confinement, suggesting to the expert that he could do the same on conditional release. The prosecution's experts, in turn, viewed defendant as a “moderate risk of danger, ” particularly if presented with stressful situations, and concluded on the basis of his rule violations, his interpersonal relationships, and his purportedly spotty attendance at treatment programs that he was not ready for conditional release.

         The trial judge found the decision difficult, noting he was “very sympathetic to the position [defendant is] in.” The court believed defendant “doesn't present much of a danger right now, ” but it recognized he would present a danger if he decompensated upon conditional release. In denying the petition, the court found decisive defendant's failure on three prior occasions to succeed upon conditional release, his failure to follow hospital rules, despite suffering discipline as a result of the violations, and his failure to attend treatment programs consistently. As to the latter, the court recognized that such programs could be “amazingly boring, ” but it believed that enduring the programs was critical because they would assist ...

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